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Kent Greenfield

Kent Greenfield

Posted: January 22, 2010 12:43 PM

A Way Out of the Citizens United Mess?

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Thursday's Supreme Court decision in Citizen's United v. FEC is perhaps the most activist decision of the Supreme Court since Bush v Gore, and might be just as harmful to the nation.

There is a way out of this mess, but it will take quick action.

The Court struck down limits on corporate expenditures in elections, insuring that -- in the name of free speech -- the speech of those of us who are real, breathing humans will be drowned out by the blather of Walmart, Goldman Sachs, ExxonMobil, and other for-profit corporations. In the Court's view, there is no difference between the speech rights of humans and the speech rights of artificial entities created to make money.

The Court struck down its own precedent, ruled a portion of the McCain-Feingold election law unconstitutional, and overturned limits on corporate electioneering that have been a part of federal law for more than a century. The Court did so in a case in which neither party had asked for such rulings. Rather, the Court itself asked the parties -- after they had already been to the Court once -- to re-argue the case for the express purpose of giving the Court the opportunity to overturn settled law.

Anytime the Court strikes down a law on constitutional grounds, it is difficult to un-do. For this reason, the Court has long claimed the importance of restraint. The Court has said it will defer to the political branches if the constitutional question is a close one, and the Court has also said that it will not go out of its way to decide constitutional questions it can avoid.

The Court offended all of these notions in its opinion. It reached out to decide constitutional issues it did not have to decide, overturning careful election regulations decided by bipartisan coalitions in Congress.

There are not many options for redressing the mistakes of today's opinion. (Rick Hasen lists six, none of which he thinks will work.)

But there is one possibility.

Corporations are created ("chartered") by states, and such chartering gives them special abilities to make money. Limited liability and unlimited life are two of the most powerful benefits so bestowed.

In my view, the benefit of incorporation itself can be conditioned on the waiver of the "right" of corporations to participate in political campaigns. The Court has often upheld the ability of government to condition benefits on the waiver of rights. Admittedly, this gets complicated fast, but the basic rule is that if the government gives you something, it can limit the uses you make of it.

So if the limits on campaign expenditures of corporations were not a part of election law but a part of corporate law - then the limits would be much more easily defended.

The change would be straightforward. Now, most states charter corporations "for any and all lawful purposes." The only change required would be for the statute to add "except that any entity created by this charter shall not have the power to expend money to influence the outcome of any local, state, or federal election."

But these changes would have to come fast. Starting today, corporations can spend as much money as they want to skew elections at every level of government. Efforts to amend corporate statutes to make it clear that corporations should stay out of politics will not be greeted warmly by the corporate elite. If these amendments are delayed until most elected officials owe their jobs to corporate benefactors, then we can kiss these changes -- and perhaps genuine democracy -- goodbye.